ECA Public Procurement Forum (Tashkent – April 25-28, 2005)

1. ECA Public Procurement Forum(Tashkent – April 25-28, 2005) Improving Public Procurement Regulation FBentchikou World Bank

2. Objectives of a Public Procurement Regulation • To produce best value for money. • To establish or reinforce government agencies’ credibility. • To enlist active involvement of business partners.

3. Scope of the Regulation • Procurement regulatory framework should preferably address all government contracts, given the risk that, otherwise, private considerations prevail over public interest.

4. Transparency HOW ? • Effective advertisement. • Public bid opening. • Use of non-discriminatory and objectively quantifiable bid evaluation criteria. • Award to the lowest evaluated responsive bid without negotiations. Note: Procedural rules play an important role.

5. Transparency AVOID • Using a two-envelope system. • Using a point system to evaluate bids. • Combining bid evaluation with evaluation of the bidder’s qualification. • Denying bidders access to bidding process or award for bureaucratic reasons. • Requesting bid securities when not needed.

6. Fair Treatment of Bidders • Losing bidders should have the opportunity to submit protests pertaining to contract award, before the award becomes final, to an independent entity with adequate expertise. • Prerequisites for an effective bid protest: timeliness, overall transparency of bidding process.

7. Fair Treatment of Contract Partners • Contract partners must be subject to fair contract conditions: • Payment to contracting party to be made within the time period stipulated in the contract. • Equitable price adjustment mechanism.

8. When contract with foreign supplier, payment by L/C. • Alternate dispute review mechanisms for complex contracts. • Final settlement of disputes.

9. Exceptions and Waivers • Regulation should provide any waiver needed in the context of international agreements. • Procurement regulations may include specific exceptions to contract law, for example, termination for convenience.

10. Regulatory Frameworks: Current Approaches Instruments: • Drafting a new law. • Revising an existing law, which requires preserving specificities of the national system.

11. Examples of country specificities • Latin America (scope of the law includes concession contracts, system extremely transparent , e.g. “la vista,” very formal, e.g., use of stamps or seals …). • Anglo Saxon countries (financial management regulation, simplified procurement rules, audits). • Francophone countries (clarity, discretionary provisions, scope of the law includes contract conditions). • Others (China, Philippines, Indonesia).

12. Regulatory Frameworks: Current Approaches UNCITRAL model law: • Best suited when starting with entirely new legislation, such as in the case of Tashkent conference participant countries. • Flexible (can be used selectively). • Comprehensive. • Guide. • A few provisions to add or modify.

13. Other ways to categorize a regulatory framework: • Procurement law specifying proceedings, contracting parties and controls. • Procurement law with primary emphasis on procurement institutions such central procurement tenders (Nigeria, Zambia, Rwanda, Uganda).

14. Regional models (WAEMU). Conclusion: Implementation of the same principles in all cases.